AMENDMENTS TO UNIFORM INTERSTATE FAMILY SUPPORT ACT (2001)

ARTICLE 1

GENERAL PROVISIONS

SECTION 101. SHORT TITLE. This [Act] may be cited as the Uniform Interstate Family Support Act.

SECTION 102. DEFINITIONS. In this [Act]:

(1) “Child” means an individual, whether over or under the age of majority, who is or is alleged to be owed a duty of support by the individual’s parent or who is or is alleged to be the beneficiary of a support order directed to the parent.

(2) “Child-support order” means a support order for a child, including a child who has attained the age of majority under the law of the issuing State.

(3) “Convention” means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.

~~(3)~~ (4) “Duty of support” means an obligation imposed or imposable by law to provide support for a child, spouse, or former spouse, including an unsatisfied obligation to provide support.

(5) “Foreign country” means a political entity, including a political subdivision thereof, that under its law authorizes the issuance of support orders and which has:

(A) been declared under federal law to be a foreign reciprocating country or political subdivision;

(B) established a reciprocal arrangement for child-support with this State as provided in Section 308;

(C) enacted a law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures under this [Act]; or

(D) ratified the Convention or acceded to the United States with regard to the Convention.

REPORTER’S NOTE

The proposed addition of these stand-alone definitions of iterations of “foreign country” and “foreign tribunal,” below, are to be read in conjunction with the prior definition of “State,” infra, which under certain circumstances declared a foreign country or political subdivision to be a “State.” Defining a foreign country or a political subdivision thereof, e.g., a Canadian province, as a “State” may be traced back to 1968, where this approach first appeared in the Revised Uniform Reciprocal Enforcement of Support Act, a.k.a. RURESA. No one thinks a foreign support order is entitled to Full Faith and Credit. Indeed, such orders of the sister states were only relatively recently accorded that treatment after congressional action in 1994. Thus, constitutional analysis is not required; only state statutory issues are involved. Moreover, asserting that a foreign order be treated “equally” to a sister state order could well result in a manifestly unfair decision. For example, reading Sections 611 and 615 strictly, modification of a foreign child-support should be refused under Section 611 if Section 615 is inapplicable, such as when the obligee-petitioner continues to reside in the issuing foreign country which does modify its orders. Such application of Section 611 in the State where the obligor resides would frustrate application of local guidelines that recognize a greatly increased obligation and ability to pay.

The terms “foreign order” or “foreign judgment” are used ambiguously in the original definition, and throughout the Act]. The sense of the usage in UIFSA seems to be “out-of-state, rather than “out-of-country.” If an international construction is intended, the text is “foreign country or political subdivision.” After ratification of the Convention, such ambiguity must be eliminated.

(6) “Foreign support order” means a child-support or spousal support order issued by a foreign tribunal.

(7) “Foreign tribunal” means a court, administrative agency, or quasi-judicial entity of a foreign country authorized to establish, enforce, or modify support orders or to determine parentage. As provided by the Convention, the term includes a “competent authority,” which may be a judicial or administrative authority in a proceeding in a foreign country.

~~(4)~~ (8) “Home State” means the State or the foreign country in which a child lived with a parent or a person acting as parent for at least six consecutive months immediately preceding the time of filing of a [petition] or comparable pleading for support and, if a child is less than six months old, the State or foreign country in which the child lived from birth with any of them. A period of temporary absence of any of them is counted as part of the six-month or other period.

~~(5)~~ (9) “Income” includes earnings or other periodic entitlements to money from any source and any other property subject to withholding for support under the law of this State.

~~(6)~~ (10) “Income-withholding order” means an order or other legal process directed to an obligor’s [employer] [or other debtor], as defined by [the income-withholding law of this State], to withhold support from the income of the obligor.

~~(7)~~ (11) “Initiating State or foreign country” means a State or foreign country from which a proceeding is forwarded or in which a proceeding is filed for forwarding to a responding State under this [Act] or a law or procedure substantially similar to this [Act].

~~(8)~~ (12) “Initiating tribunal” means the authorized tribunal of an initiating State or foreign country.

REPORTER’S NOTE

The process of an “initiating tribunal” in one State that vets an outgoing request for child-support in a proceeding and then forwards that proceeding to a tribunal in another State is an anachronism, left over from the days of URESA/RURESA which ended for all States in 1998. Indeed, such actions were statutorily reserved to “courts” until the advent of UIFSA, beginning in 1993. Similarly, the process of filing that “proceeding” initiated elsewhere in a “responding tribunal” is equally an anachronism, see subsection 24, infra. Experience with the actual practice of support enforcement in the United States since 1993 has demonstrated that the URESA procedure is no longer utilized.

Further, such a process is inconsistent with the Convention, which employs procedures involving central authority to central authority or direct requests. It is also inconsistent with the actual practice of IV-D agencies and private practitioners in this country. Moreover, if anyone still employs this process, UIFSA should end that practice, which amounts to a waste of judicial resources to accomplish a basically irrelevant action. I suggest deleting the definitions of “initiating tribunal,” and “initiating State,” which are no longer viable. See additional suggested amendments to Article 3, infra.

~~(9)~~ (13) “Issuing State or foreign country” means the State or foreign country in which a tribunal issues a support order or issues a judgment determining parentage.

~~(10)~~ (14) “Issuing tribunal” means the tribunal of a State or foreign country that issues a support order or issues a judgment determining parentage.

~~(11)~~ (15) “Law” includes decisional and statutory law and rules and regulations having the force of law.

(16) “Nonparticipating country” means a political entity, including a political subdivision thereof, that is not a foreign country under subsection (5), but under its law authorizes the issuance of support orders that may be found to be entitled to recognition on the basis of comity.

~~(12)~~ (17) “Obligee” means:

(A) an individual to whom a duty of support is or is alleged to be owed or in whose favor a support order has been issued or a judgment determining parentage has been issued;

(B) a State or foreign country ~~or political subdivision~~ to which the rights under a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an individual obligee; or

(D) an individual or entity named as a “creditor” as provided by the Convention.

~~(13~~) (18) “Obligor” means an individual, or the estate of a decedent:

(A) who owes or is alleged to owe a duty of support;

(B) who is alleged but has not been adjudicated to be a parent of a child; or

(D) who is named as a “debtor” as provided by the Convention.

~~(14)~~ (19) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency, or instrumentality, public corporation, or any other legal or commercial entity.

~~(15)~~ (20) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

~~(16)~~ (21) “Register” means to [record; file] in a tribunal of this State a support order or judgment determining parentage issued by a tribunal of another State or foreign country. [~~in the appropriate location for the recording or filing of foreign judgments or support orders generally or foreign support orders specifically~~].

~~(17)~~ (22) “Registering tribunal” means a tribunal in which a support order or judgment determining parentage is registered.

~~(18)~~ (23) “Responding State” or “responding foreign country” means a State or foreign country in which a proceeding is filed or to which a proceeding is forwarded for filing from an initiating State or foreign country under this [Act] or a law or procedure substantially similar to this [Act].

~~(19)~~ (24) “Responding tribunal” means the authorized tribunal in a responding State or foreign country.

~~(20)~~ (25) “Spousal-support order” means a support order for a spouse or former spouse of the obligor.

~~(21)~~ (26) “State” means a State of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes~~: (A)~~ an Indian tribe.

~~(B) a foreign country that:~~

~~(i) has been declared to be a foreign reciprocating country or political subdivision under federal law;~~

~~(ii) has established a reciprocal arrangement for child support with this State as provided in Section 308; or~~

~~(iii) has enacted a law or established procedures for the issuance and enforcement of support orders which are substantially similar to the procedures under this [Act]~~.

REPORTER’S NOTE

The amended definition of “State” eliminates the fiction that a foreign country can be a U.S. State, and clarifies and implements the purpose of the Act to enforce an international support order under state law. In addition, in several provisions of UIFSA the term “State” clearly is intended to refer only to a State of the United States. If the Senate gives its advice and consent to the Convention and is it signed by the President, the federal preemption of the issue via the treaty clause will be sufficient to accomplish that goal, U. S. Const. Art. VI., cl. 2. However, because the treaty is not self-executing, additional federal or state statutory enactments are necessary to enable the treaty and make it readily accessible to bench and bar. Further, UIFSA may supply answers to questions the Convention leaves unresolved. This is particularly clear with regard to modification of existing orders when the parties have moved from the issuing state or foreign country, or other factual circumstances have changed significantly.

Another problem is presented by the fact that in the U.S. the term “foreign order” often means an order from whatever source outside of the particular State, and most often relates to an order of a sister State. Ultimately it will be best to avoid the term “foreign order,” and refer to “an foreign support order.” Although somewhat awkward, this terminology is unambiguous.

~~(22)~~ (27) “Support enforcement agency” means a public official or agency authorized to seek:

(A) enforcement of support orders or laws relating to the duty of support;

(B) establishment or modification of child-support;

(D) location of obligors or their assets; or

(E) determination of the controlling child-support order.

~~(23)~~ (28) “Support order” means a judgment, decree, order, decision, or directive, whether temporary, final, or subject to modification, issued by a tribunal, for the benefit of a child, a spouse, or a former spouse, which provides for monetary support, health care, arrearages, retroactive support or reimbursement, and may include related costs and fees, interest, income withholding, automatic adjustment by indexation, attorney’s fees, and other relief.

~~(24)~~ (29) “Tribunal” means a court, administrative agency, or quasi-judicial entity authorized to establish, enforce, or modify support orders or to determine parentage.

SECTION 103. TRIBUNAL OF STATE. The [court, administrative agency, quasi-judicial entity, or combination] [is the tribunal] [are the tribunals] of this State.

SECTION 104. REMEDIES CUMULATIVE.

(a) Remedies provided by this [Act] are cumulative and do not affect the availability of remedies under other law, including the recognition of a support order of a ~~foreign or political subdivision~~ tribunal of a nonparticipating country on the basis of comity.

(b) If a tribunal of this State recognizes a support order of a nonparticipating country on the basis of comity, the tribunal may use the procedural and substantive provisions of Articles 1-6 of this [Act] as may be appropriate.

~~(b)~~ (c) This [Act] does not:

(1) provide the exclusive method of establishing or enforcing a support order under the law of this State; or

(2) grant a tribunal of this State jurisdiction to render judgment or issue an order relating to [child custody or visitation] in a proceeding under this [Act].

SECTION 105. APPLICATION OF [ACT] TO RESIDENT OF FOREIGN COUNTRY AND FOREIGN SUPPORT ORDER.

(a) A tribunal of this State shall apply [Articles 1-6], and as appropriate [Article 7], to a support proceeding involving a foreign support order, a foreign tribunal, or an obligee, obligor, or a child residing in a foreign country.

(b) [Article 7] of this [Act] applies only to a support proceeding subject to the Convention. If a provision of [Articles 1-6] is inconsistent with a provision of [Article 7], the provision of [Article 7] controls.

ARTICLE 2

JURISDICTION

SECTION 201. BASES FOR JURISDICTION OVER NONRESIDENT.

(a) In a proceeding to establish or enforce a support order or to determine parentage, a tribunal of this State may exercise personal jurisdiction over a nonresident individual [or the individual’s guardian or conservator] if:

(1) the individual is personally served with [citation, summons, notice] within this State;

(2) the individual submits to the jurisdiction of this State by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction;

(3) the individual resided with the child in this State;

(4) the individual resided in this State and provided prenatal expenses or support for the child;

(5) the child resides in this State as a result of the acts or directives of the individual;

(6) the individual engaged in sexual intercourse in this State and the child may have been conceived by that act of intercourse;

(7) [the individual asserted parentage in the [putative father registry] maintained in this State by the [appropriate agency]; or

(8)] there is any other basis consistent with the constitutions of this State and the United States for the exercise of personal jurisdiction.

(b) The bases of personal jurisdiction set forth in subsection (a) or in any other law of this State may not be used to acquire personal jurisdiction for a tribunal of ~~the~~ this State to modify a child-support order issued by a tribunal of another State unless the requirements of Section 611 or 615 are met, or, in the case of a foreign support order, unless the requirements of Section 615 are met.

REPORTER’S NOTE

Section 201(b) solidifies the concepts of personal jurisdiction and its progeny, continuing jurisdiction and controlling orders, for tribunals of the United States. The long-arm provisions were originally written with only domestic cases in mind. If the tribunal of this State, or of another State, had personal jurisdiction over an individual residing in another State, the application of local law is entitled to recognition and enforcement, Full Faith and Credit for Child Support Orders Act, a.k.a. FFCCSOA, 28 USC 1738B.

As implied by new Section 707, most, if not all, foreign countries recognize and enforce a child-support order based on the residence of the obligee or the child. The U.S. requirement of personal jurisdiction over the obligor is generally regarded abroad as an idiosyncratic error. Nonetheless, the new Convention requires recognition of U.S. orders based on long-arm jurisdiction asserted over the obligor, a.k.a. “debtor.” Of course, in such cases the U.S. tribunal also has jurisdiction over the obligee, a.k.a. “creditor.” From the perspective of a foreign tribunal, such an order is valid even though the U.S. tribunal requires a personal nexus between the parties and the State tribunal as described in this section

SECTION 202. DURATION OF PERSONAL JURISDICTION. Personal jurisdiction acquired by a tribunal of this State in a proceeding under this [Act] or other law of this State relating to a support order continues as long as a tribunal of this State has continuing, exclusive jurisdiction to modify its order or continuing jurisdiction to enforce its order as provided by Sections 205, 206, and 211.

SECTION 203. INITIATING AND RESPONDING TRIBUNAL OF STATE. Under this [Act], a tribunal of this State may serve as an initiating tribunal to forward proceedings to another State or foreign country and as a responding tribunal for proceedings initiated in another State or foreign country.

SECTION 204. SIMULTANEOUS PROCEEDINGS.

(a) Except as otherwise provided in Section 711, A a tribunal of this State may exercise jurisdiction to establish a support order if the [petition] or comparable pleading is filed after a pleading is filed in another State or foreign country only if:

(1) the [petition] or comparable pleading in this State is filed before the expiration of the time allowed in the other State or foreign country for filing a responsive pleading challenging the exercise of jurisdiction by the other State or foreign country;

(2) the contesting party timely challenges the exercise of jurisdiction in the other State or foreign country; and

(3) if relevant, this State is the home State of the child.

(b) A tribunal of this State may not exercise jurisdiction to establish a support order if the [petition] or comparable pleading is filed before a [petition] or comparable pleading is filed in another State or foreign country if:

(1) the [petition] or comparable pleading in the other State or foreign country is filed before the expiration of the time allowed in this State for filing a responsive pleading challenging the exercise of jurisdiction by this State;

(2) the contesting party timely challenges the exercise of jurisdiction in this State; and

(3) if relevant, the other State or foreign country is the home State of the child.

SECTION 205. CONTINUING, EXCLUSIVE JURISDICTION TO MODIFY CHILD-SUPPORT ORDER.

(a) A tribunal of this State that has issued a child-support order consistent with the law of this State has and shall exercise continuing, exclusive jurisdiction to modify its child-support order if the order is the controlling order and:

(1) at the time of the filing of a request for modification this State is the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or

(2) even if this State is not the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued, the parties consent in a record or in open court that the tribunal of this State may continue to exercise jurisdiction to modify its order.

(b) A tribunal of this State that has issued a child-support order consistent with the law of this State may not exercise continuing, exclusive jurisdiction to modify the order if:

(1) all of the parties who are individuals file consent in a record with the tribunal of this State that a tribunal of another State that has jurisdiction over at least one of the parties who is an individual or who is located in the State of residence of the child may modify the order and assume continuing, exclusive jurisdiction; or

(2) its order is not the controlling order.

(c) If a tribunal of another State has issued a child-support order pursuant to [the Uniform Interstate Family Support Act] or a law substantially similar to that Act which modifies a child-support order of a tribunal of this State, tribunals of this State shall recognize the continuing, exclusive jurisdiction of the tribunal of the other State.

(d) A tribunal of this State that lacks continuing, exclusive jurisdiction to modify a child-support order may serve as an initiating tribunal to a tribunal of another State to modify a support order issued in that State.

(e) A temporary support order issued ex parte or pending resolution of a jurisdictional conflict does not create continuing, exclusive jurisdiction in the issuing tribunal.

SECTION 206. CONTINUING JURISDICTION TO ENFORCE CHILD-SUPPORT ORDER.

(a) A tribunal of this State that has issued a child-support order consistent with the law of this State may serve as an initiating tribunal to request a tribunal of another State or foreign country to enforce:

(1) the order if the order is the controlling order and has not been modified by a tribunal of another State that assumed jurisdiction pursuant to the [Uniform Interstate Family Support Act]; or

(2) a money judgment for arrears of support and interest on the order accrued before a determination that an order of a tribunal of another State is the controlling order.

(b) A tribunal of this State having continuing, jurisdiction over a support order may act as a responding tribunal to enforce the order.

SECTION 207. DETERMINATION OF CONTROLLING CHILD-SUPPORT ORDER.

(a) If a proceeding is brought under this [Act] and only one tribunal has issued a child-support order, the order of that tribunal controls and must be so recognized.

(b) Except as otherwise provided in Section 711, If if a proceeding is brought under this [Act], and two or more child-support orders have been issued by tribunals of this State or another State or foreign country with regard to the same obligor and same child, a tribunal of this State having personal jurisdiction over both the obligor and individual obligee shall apply the following rules and by order shall determine which order controls:

(1) if only one of the tribunals would have continuing, exclusive jurisdiction under this [Act], the order of that tribunal controls and must be so recognized.

(2) if more than one of the tribunals would have continuing, exclusive jurisdiction under this [Act]:

(A) an order issued by a tribunal in the current home State of the child controls; but

(B) if an order has not been issued in the current home State of the child, the order most recently issued controls.

(3) if none of the tribunals would have continuing, exclusive jurisdiction under this [Act], the tribunal of this State shall issue a child-support order, which controls.

(c) If two or more child-support orders have been issued for the same obligor and same child, upon request of a party who is an individual or a support enforcement agency, a tribunal of this State having personal jurisdiction over both the obligor and the obligee who is an individual shall determine which order controls under subsection (b). The request may be filed with a registration for enforcement or registration for modification pursuant to Article 6, or may be filed as a separate proceeding.

(d) A request to determine which is the controlling order must be accompanied by a copy of every child-support order in effect and the applicable record of payments. The requesting party shall give notice of the request to each party whose rights may be affected by the determination.

(e) The tribunal that issued the controlling order under subsection (a), (b), or (c) has continuing, jurisdiction to the extent provided in Section 205 or 206.

(f) A tribunal of this State that determines by order which is the controlling order under subsection (b)(1) or (2) or (c), or that issues a new controlling order under subsection (b)(3), shall state in that order:

(1) the basis upon which the tribunal made its determination;

(2) the amount of prospective support, if any; and

(3) the total amount of consolidated arrears and accrued interest, if any, under all of the orders after all payments made are credited as provided by Section 209.

(g) Within [30] days after issuance of an order determining which is the controlling order, the party obtaining the order shall file a certified copy of it in each tribunal that issued or registered an earlier order of child-support. A party or support enforcement agency obtaining the order that fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the controlling order.

(h) An order that has been determined to be the controlling order, or a judgment for consolidated arrears of support and interest, if any, made pursuant to this section must be recognized in proceedings under this [Act].

REPORTER’S NOTE

The only significant difference between this section and Section 204 is that the “home state” of the child is not the first tiebreaker. Unfortunately, the Convention establishes “most recent” as the tiebreaker, rather than the “home state” which better fits U.S. law. The disparity must be recognized in Article 7.

SECTION 208. CHILD-SUPPORT ORDERS FOR TWO OR MORE OBLIGEES. In responding to registrations or [petitions] for enforcement of two or more child-support orders in effect at the same time with regard to the same obligor and different individual obligees, at least one of which was issued by a tribunal of another State or foreign country, a tribunal of this State shall enforce those orders in the same manner as if the orders had been issued by a tribunal of this State.

SECTION 209. CREDIT FOR PAYMENTS. A tribunal of this State shall credit amounts collected for a particular period pursuant to any child-support order against the amounts owed for the same period under any other child-support order for support of the same child issued by a tribunal of this or another State or foreign country.

SECTION 210. APPLICATION OF [Act] TO NONRESIDENT SUBJECT TO PERSONAL JURISDICTION. A tribunal of this State exercising personal jurisdiction over a nonresident pursuant to Section 201 of this [Act], or ~~under~~ other law of this State relating to a support order, may receive evidence from outside this State pursuant to Section 316, communicate with a tribunal outside this State pursuant to Section 317, and obtain discovery through a tribunal outside this State pursuant to Section 318. In all other respects, Articles 3 through 6 7 do not apply and the tribunal shall apply the procedural and substantive law of this State.

REPORTER’S NOTE

A tribunal of this State may not exercise personal jurisdiction based on the law of a foreign country, but is free to recognize an order based on comity. The tribunal is also free to employ internationally other procedural and evidentiary provisions of the Act without constraint.

SECTION 211. CONTINUING, EXCLUSIVE JURISDICTION TO MODIFY SPOUSAL-SUPPORT ORDER.

(a) A tribunal of this State issuing a spousal-support order consistent with the law of this State has continuing, exclusive jurisdiction to modify the spousal-support order throughout the existence of the support obligation.

(b) A tribunal of this State may not modify a spousal-support order issued by a tribunal of another State or foreign country having continuing, exclusive jurisdiction over that order under the law of that State or foreign country.

(1) an initiating tribunal to request a tribunal of another State or foreign country to enforce the spousal-support order issued in this State; or

(2) a responding tribunal to enforce or modify its own spousal-support order.

SECTION 212. APPLICATION OF [ACT] TO NONPARTICIPATING COUNTRY. A tribunal of this State that is requested to recognize and enforce a support order of a nonparticipating country on the basis of comity may apply the procedural and substantive provisions of [Articles 1-6] of this [Act] as appropriate.

REPORTER’S NOTE

The amendments to Section 211 continue the decision made first in UIFSA 1992 that declined modification of a spousal support order. The same treatments is to be accorded to an order by a foreign tribunal. The bases of this decision are explained in the UIFSA 2001 Comment as follows:

The prohibition of modification of spousal support by a nonissuing state tribunal under UIFSA is consistent with the principle that a tribunal should apply local law to such cases to insure efficient handling and to minimize choice of law problems. Avoiding conflict of law problems is almost impossible if spousal support orders are subject to modification in a second State. For example, States take widely varying views of the effect on a spousal support order of the obligee's remarriage or nonmarital cohabitation. Making a distinction between spousal and child-support is further justified because the standards for modification of child-support and spousal support are very different. In most jurisdictions a dramatic improvement in the obligor's economic circumstances will have little or no relevance in a proceeding seeking an upward modification of spousal support, while a similar change in an obligor's situation typically is the primary basis for an increase in child-support. This disparity is founded on a policy choice that post-divorce success of an obligor-parent should benefit the obligor's child, but not the obligor’s ex-spouse.

ARTICLE 3

CIVIL PROVISIONS OF GENERAL APPLICATION

REPORTER’S NOTE

The procedure described in Sections 301, and 304-307 are wholly incompatible with the “application” process established in the Convention, which is based on central authority to central authority or direct application. These articles are passé with regard to the actual practice between IV-D agencies in the U.S., and with lawsuits pursued by private counsel. The present system of vetting by an initiating tribunal in one State and forwarding that paperwork to a tribunal in another State has been replaced by direct contact with the tribunal being requested to take action. The two-state tribunal involvement originated in URESA/RURESA, and was continued in UIFSA 1992. It has long since been virtually (or completely) abandoned by both IV-D agencies and private counsel. It is doubtful that any agency, and very few, if any, private counsel, actually file a petition in a tribunal in the initiating state, which is then vetted by that tribunal and forwarded to a tribunal in the responding state. Given the disparity between the written law and actual practice, these sections should be revised at this opportunity. Equally important, such a revision will then model the process established in the Convention for international cases.

SECTION 301. PROCEEDINGS UNDER [ACT].

(a) Except as otherwise provided in this [Act], this article applies to all proceedings under this [Act].

(b) A individual [petitioner] or support enforcement agency may initiate a proceeding authorized under this [Act] by filing a [petition] in an initiating tribunal for forwarding to a responding tribunal or by filing a [petition] or a comparable pleading directly in a tribunal of another State or foreign country which has or can obtain personal jurisdiction over the [respondent].

REPORTER’S NOTE

The revised language reflects actual practice under UIFSA. The statement that the filing State may or must have personal jurisdiction over the respondent is axiomatic at best.

SECTION 302. PROCEEDING BY MINOR PARENT. A minor parent, or a guardian or other legal representative of a minor parent, may maintain a proceeding on behalf of or for the benefit of the minor’s child.

SECTION 303. APPLICATION OF LAW OF STATE. Except as otherwise provided in this [Act], a responding tribunal of this State shall:

(1) apply the procedural and substantive law generally applicable to similar proceedings originating in this State and may exercise all powers and provide all remedies available in those proceedings; and

(2) determine the duty of support and the amount payable in accordance with the law and support guidelines of this State.

SECTION 304. DUTIES OF INITIATING TRIBUNAL.

(a) Upon the filing of a [petition] authorized by this [Act], an initiating tribunal of this State shall forward the [petition] and its accompanying documents:

(1) to the responding tribunal or appropriate support enforcement agency in the responding State or foreign country; or

(2) if the identity of the responding tribunal is unknown, to the State information agency of the responding State with a request that they be forwarded to the appropriate tribunal and that receipt be acknowledged.

(b) If requested by the responding tribunal, a tribunal of this State shall issue a certificate or other document and make findings required by the law of the responding State or foreign country. If the responding ~~State~~ tribunal is in a foreign country ~~or political subdivision~~, upon request the tribunal of this State shall specify the amount of support sought, convert that amount into the equivalent amount in the foreign currency under applicable official or market exchange rate as publicly reported, and provide any other documents necessary to satisfy the requirements of the responding foreign ~~State~~ tribunal.

REPORTER’S NOTE

The directives regarding foreign currency issues in Sections 304, 305, and 307, are specifically directed to a tribunal “of this State,” and do not affect the order going to, or coming from the foreign country.

SECTION 305. DUTIES AND POWERS OF RESPONDING TRIBUNAL.

(a) When a responding tribunal of this State receives a [petition] or comparable pleading from an initiating tribunal or directly pursuant to Section 301(b), it shall cause the [petition] or pleading to be filed and notify the [petitioner] where and when it was filed.

(b) A responding tribunal of this State, to the extent not prohibited by other law, may do one or more of the following:

(1) establish or enforce a support order, modify a child-support order, determine the controlling child-support order, or determine parentage;

(2) order an obligor to comply with a support order, specifying the amount and the manner of compliance;

(3) order income withholding;

(4) determine the amount of any arrearages, and specify a method of payment;

(5) enforce orders by civil or criminal contempt, or both;

(6) set aside property for satisfaction of the support order;

(7) place liens and order execution on the obligor’s property;

(8) order an obligor to keep the tribunal informed of the obligor’s current residential address, telephone number, employer, address of employment, and telephone number at the place of employment;

(9) issue a [bench warrant/capias] for an obligor who has failed after proper notice to appear at a hearing ordered by the tribunal and enter the [bench warrant; capias] in any local and State computer systems for criminal warrants;

(10) order the obligor to seek appropriate employment by specified methods;

(11) award reasonable attorney’s fees and other fees and costs; and

(12) grant any other available remedy.

(c) A responding tribunal of this State shall include in a support order issued under this [Act], or in the documents accompanying the order, the calculations on which the support order is based.

(d) A responding tribunal of this State may not condition the payment of a support order issued under this [Act] upon compliance by a party with provisions for visitation.

(e) If a responding tribunal of this State issues an order under this [Act], the tribunal shall send a copy of the order to the [petitioner] and the [respondent] and to the initiating tribunal, if any.

(f) If requested to enforce a support order, arrears, or judgment or modify a support order stated in a foreign currency, a responding tribunal of this State shall convert the amount stated in the foreign currency to the equivalent amount in dollars under the applicable official or market exchange rate as publicly reported.

REPORTER’S NOTE

See Convention art. 19.

SECTION 306. INAPPROPRIATE TRIBUNAL. If a [petition] or comparable pleading is received by an inappropriate tribunal of this State, the tribunal shall forward the pleading and accompanying documents to an appropriate tribunal in this State or another State and notify the [petitioner] where and when the pleading was sent.

SECTION 307. DUTIES OF SUPPORT ENFORCEMENT AGENCY.

(a) A support enforcement agency of this State, upon request, shall provide services to a [petitioner] in a proceeding under this [Act].

(b) A support enforcement agency of this State that is providing services to a [petitioner] shall:

(1) take all steps necessary to enable an appropriate tribunal in this State or another State or foreign country to obtain jurisdiction over the [respondent];

(2) request an appropriate tribunal to set a date, time, and place for a hearing;

(3) make a reasonable effort to obtain all relevant information, including information as to income and property of the parties;

(4) within [two] days, exclusive of Saturdays, Sundays, and legal holidays, after receipt of a written notice in a record from an initiating, responding, or registering tribunal, send a copy of the notice to the [petitioner];

(5) within [two] days, exclusive of Saturdays, Sundays, and legal holidays, after receipt of a written communication in a record from the [respondent] or the [respondent’s] attorney, send a copy of the communication to the [petitioner]; and

(6) notify the [petitioner] if jurisdiction over the [respondent] cannot be obtained.

(c) A support enforcement agency of this State that requests registration of a child-support order in this State for enforcement or for modification shall make reasonable efforts:

(1) to ensure that the order to be registered is the controlling order; or

(2) if two or more child-support orders exist and the identity of the controlling order has not been determined, to ensure that a request for such a determination is made in a tribunal having jurisdiction to do so.

(d) A support enforcement agency of this State that requests registration and enforcement of a support order, arrears, or judgment stated in a foreign currency shall convert the amounts stated in the foreign currency into the equivalent amounts in dollars under the applicable official or market exchange rate as publicly reported.

(e) A support enforcement agency of this State shall [issue or] request a tribunal of this State to issue a child-support order and an income-withholding order that redirect payment of current support, arrears, and interest if requested to do so by a support enforcement agency of another State or foreign country pursuant to Section 319 of the Uniform Interstate Family Support Act.

(f) This [Act] does not create or negate a relationship of attorney and client or other fiduciary relationship between a support enforcement agency or the attorney for the agency and the individual being assisted by the agency.

SECTION 308. DUTY OF [STATE OFFICIAL OR AGENCY].

(a) If the [appropriate state official or agency] determines that the support enforcement agency is neglecting or refusing to provide services to an individual, the [state official or agency] may order the agency to perform its duties under this [Act] or may provide those services directly to the individual.

(b) The [appropriate state official or agency] may determine that a foreign country ~~or political subdivision~~ has established a reciprocal arrangement for child-support with this State and take appropriate action for notification of the determination.

SECTION 309. PRIVATE COUNSEL. An individual may employ private counsel to represent the individual in proceedings authorized by this [Act].

SECTION 310. DUTIES OF [STATE INFORMATION AGENCY].

(a) The [Attorney General’s Office, State Attorney’s Office, State Central Registry, Interstate Central Registry or other information agency] is the state information agency under this [Act].

(b) The state information agency shall:

(1) compile and maintain a current list, including addresses, of the tribunals in this State which have jurisdiction under this [Act] and any support enforcement agencies in this State and transmit a copy to the state information agency of every other State;

(2) maintain a register of names and addresses of tribunals and support enforcement agencies received from other States;

(3) forward to the appropriate tribunal in the [county] in this State in which the obligee who is an individual or the obligor resides, or in which the obligor’s property is believed to be located, all documents concerning a proceeding under this [Act] received from an initiating tribunal or the state information agency of the initiating State or foreign country; and

(4) obtain information concerning the location of the obligor and the obligor’s property within this State not exempt from execution, by such means as postal verification and federal or state locator services, examination of telephone directories, requests for the obligor’s address from employers, and examination of governmental records, including, to the extent not prohibited by other law, those relating to real property, vital statistics, law enforcement, taxation, motor vehicles, driver’s licenses, and social security.

SECTION 311. PLEADINGS AND ACCOMPANYING DOCUMENTS.

(a) Except as provided in Section 705, In in a proceeding under this [Act], a [petitioner] seeking to establish a support order, to determine parentage, or to register and modify a support order of a tribunal of another State or foreign country must file a [petition]. Unless otherwise ordered ~~under~~ pursuant to Section 312, the [petition] or accompanying documents must provide, so far as known, the name, residential address, and social security numbers of the obligor and the obligee or the parent and alleged parent, and the name, sex, residential address, social security number, and date of birth of each child for whose benefit support is sought or whose parentage is to be determined. Unless filed at the time of registration, the [petition] must be accompanied by a copy of any support order known to have been issued by another tribunal. The [petition] may include any other information that may assist in locating or identifying the [respondent].

(b) The [petition] must specify the relief sought. The [petition] and accompanying documents must conform substantially with the requirements imposed by the forms mandated by federal law for use in cases filed by a support enforcement agency.

REPORTER’S NOTE

See Convention art. 25. Documents

The process of nondisclosure established in § 312 contemplates nondisclosure on the basis of an affidavit; disclosure may be ordered by a tribunal only after the fact when the other party requests disclosure and the tribunal approves the request.

SECTION 312. NONDISCLOSURE OF INFORMATION IN EXCEPTIONAL CIRCUMSTANCES.

(a) If a party alleges in an affidavit or a pleading under oath that the health, safety, or liberty of a party or child would be jeopardized by disclosure of specific identifying information, that information must be sealed and may not be disclosed to the other party or the public. After a hearing in which a tribunal takes into consideration the health, safety, or liberty of the party or child, the tribunal may order disclosure of information that the tribunal determines to be in the interest of justice.

(b) Personal information gathered or transmitted under this [Act] may only be used for the purposes for which it was gathered or transmitted.

REPORTER’S NOTE

See Convention arts. 38, 39, & 40

Despite the views of the Tucson advisors, I believe (b) should be retained; otherwise the provision it must be stated in Article 7 as an orphan section.

SECTION 313. COSTS AND FEES.

(a) In a proceeding under this [Act], ~~The~~ the [petitioner] may not be required to:

(1) pay a filing fee or other costs; or

(2) provide security, bond, or deposit to guarantee the payment of costs and expenses.

(b) If an obligee prevails, a tribunal of this State may assess against an obligor filing fees, reasonable attorney’s fees, other costs, and necessary travel and other reasonable expenses incurred by the obligee and the obligee’s witnesses. The tribunal may not assess fees, costs, or expenses against the obligee or the support enforcement agency of either the initiating or responding State or foreign country, except as provided by other law. Attorney’s fees may be taxed as costs, and may be ordered paid directly to the attorney, who may enforce the order in the attorney’s own name. Payment of support owed to the obligee has priority over fees, costs and expenses.

(c) The tribunal shall order the payment of costs and reasonable attorney’s fees if it determines that a hearing was requested primarily for delay. In a proceeding under Article 6, a hearing is presumed to have been requested primarily for delay if a registered support order is confirmed or enforced without change.

REPORTER’S NOTE

See Convention arts. 14 & 43

SECTION 314. LIMITED IMMUNITY OF [PETITIONER].

(a) Participation by a [petitioner] in a proceeding under this [Act] before a responding tribunal, whether in person, by private attorney, or through services provided by the support enforcement agency, does not confer personal jurisdiction over the [petitioner] in another proceeding.

(b) A [petitioner] is not amenable to service of civil process while physically present in this State to participate in a proceeding under this [Act].

(c) The immunity granted by this section does not extend to civil litigation based on acts unrelated to a proceeding under this [Act] committed by a party while physically present in this State to participate in the proceeding.

SECTION 315. NONPARENTAGE AS DEFENSE. A party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under this [Act].

SECTION 316. SPECIAL RULES OF EVIDENCE AND PROCEDURE.

(a) The physical presence of a nonresident party who is an individual is not required for the establishment, enforcement, or modification of a support order or the rendition of a judgment determining parentage.

(b) An affidavit, a document substantially complying with federally mandated forms, or a document incorporated by reference in any of them, which would not be excluded under the hearsay rule if given in person, is admissible in evidence if given under penalty of perjury by a party or witness residing ~~in another~~ outside this State.

(c) A copy of the record of child-support payments certified as a true copy of the original by the custodian of the record may be forwarded to a responding tribunal. The copy is evidence of facts asserted in it, and is admissible to show whether payments were made.

(d) Copies of bills for testing for parentage, and for prenatal and postnatal health care of the mother and child, furnished to the adverse party at least [ten] days before trial, are admissible in evidence to prove the amount of the charges billed and that the charges were reasonable, necessary, and customary.

(e) Documentary evidence transmitted from ~~in another~~ outside this State to a tribunal of this State by telephone, telecopier, or other means that do not provide an original record may not be excluded from evidence on an objection based on the means of transmission.

(f) In a proceeding under this [Act], a tribunal of this State shall permit a party or witness residing outside this State to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means at a designated tribunal or other location ~~in that State~~. A tribunal of this State shall cooperate with other tribunals ~~of other States~~ in designating an appropriate location for the deposition or testimony.

(g) If a party called to testify at a civil hearing refuses to answer on the ground that the testimony may be self-incriminating, the trier of fact may draw an adverse inference from the refusal.

(h) A privilege against disclosure of communications between spouses does not apply in a proceeding under this [Act].

(i) The defense of immunity based on the relationship of husband and wife or parent and child does not apply in a proceeding under this [Act].

(j) A voluntary acknowledgment of paternity, certified as a true copy, is admissible to establish parentage of the child.

REPORTER’S NOTE

See Convention art. 29

SECTION 317. COMMUNICATIONS BETWEEN TRIBUNALS. A tribunal of this State may communicate with a tribunal ~~of another~~ outside this State ~~or foreign country or political subdivision~~ in a record, or by telephone or other means, to obtain information concerning the laws, the legal effect of a judgment, decree, or order of that tribunal, and the status of a proceeding in ~~the other State or foreign country~~.. A tribunal of this State may furnish similar information by similar means to a tribunal ~~of another~~ outside this State ~~or foreign country~~ or ~~political subdivision~~.

REPORTER’S NOTE

For §§ 316-318, do we want “outside this State” or “another state or foreign country.” My notes say the former, my sense of consistency says the latter.

SECTION 318. ASSISTANCE WITH DISCOVERY. A tribunal of this State may:

(1) request a tribunal of outside this State to assist in obtaining discovery; and

(2) upon request, compel a person over whom it has jurisdiction to respond to a discovery order issued by a tribunal of another State or foreign country.

SECTION 319. RECEIPT AND DISBURSEMENT OF PAYMENTS.

(a) A support enforcement agency or tribunal of this State shall disburse promptly any amounts received pursuant to a support order, as directed by the order. The agency or tribunal shall furnish to a requesting party or tribunal of another State or foreign country a certified statement by the custodian of the record of the amounts and dates of all payments received.

(b) If neither the obligor, nor the obligee who is an individual, nor the child resides in this State, upon request from the support enforcement agency of this State, or another State or foreign country, [the support enforcement agency of this State or] a tribunal of this State shall:

(1) direct that the support payment be made to the support enforcement agency in the State or foreign country in which the obligee is receiving services; and

(2) issue and send to the obligor’s employer a conforming income-withholding order or an administrative notice of change of payee, reflecting the redirected payments.

(c) The support enforcement agency of this State receiving redirected payments from another State or foreign country pursuant to a law similar to subsection (b) shall furnish to a requesting party or tribunal of the other State or foreign country a certified statement by the custodian of the record of the amount and dates of all payments received.

REPORTER’S NOTE

(Lilly) This section is designed to speed up payments to obligee’s State.

ARTICLE 4

ESTABLISHMENT OF SUPPORT ORDER

SECTION 401. [PETITION] TO ESTABLISH SUPPORT ORDER.

(a) If a support order entitled to recognition under this [Act] has not been issued, a responding tribunal of this State may issue a support order if:

(1) the individual seeking the order resides in another State or foreign country; or

(2) the support enforcement agency seeking the order is located in another State or foreign country.

(b) The tribunal may issue a temporary child-support order if the tribunal determines that such an order is appropriate and the individual ordered to pay is:

(1) a presumed father of the child;

(2) petitioning to have his paternity adjudicated;

(3) identified as the father of the child through genetic testing;

(4) an alleged father who has declined to submit to genetic testing;

(5) shown by clear and convincing evidence to be the father of the child;

(6) an acknowledged father as provided by [applicable state law];

(7) the mother of the child; or

(8) an individual who has been ordered to pay child-support in a previous proceeding and the order has not been reversed or vacated.

(c) Upon finding, after notice and opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor and may issue other orders pursuant to Section 305.

REPORTER’S NOTE

This is a good place to move Section 701 of UIFSA (2001).

SECTION ~~701~~ 402. PROCEEDING TO DETERMINE PARENTAGE. A tribunal of this State authorized to determine parentage of a child may serve as a responding tribunal in a proceeding to determine parentage brought under this [Act] or a law or procedure substantially similar to this [Act].

SECTION 403. ESTABLISHMENT OF SUPPORT ORDER INVOLVING PARTY OR CHILD RESIDING IN FOREIGN COUNTRY. A tribunal of this State with personal jurisdiction over the individual parties may establish a support order involving an obligee, obligor, or child residing in a foreign country or nonparticipating country if:

(1) there is no existing order, or

(2) the existing foreign support order cannot be recognized or enforced under the provisions of this [Act].

REPORTER’S NOTE

See Convention art. 37

A fundamental principle of U.S. jurisprudence is that our courts are open to all litigants with a valid cause of action. Thus, although stating the obvious this may go unsaid, clearly articulating the principle can do no harm. Further, ever since the first iteration of UIFSA in 1992, the Uniform Law Commission, nee NCCUSL, has jealously guarded the prerogative of a litigant to employ “private counsel” to enforce support orders, see UIFSA § 309. That principle undoubtedly will continue to be a focal point of the ULC.

ARTICLE 5

ENFORCING ORDER WITHOUT REGISTRATION

REPORTER’S NOTE

The UIFSA system of direct collection of income withholding from employers across State lines is not applicable to requests across international borders. Therefore, only Section 507 may be relevant for consideration in conjunction with the Convention.

SECTION 501. EMPLOYER’S RECEIPT OF INCOME-WITHHOLDING ORDER OF ANOTHER STATE. An income-withholding order issued in by a tribunal of another State may be sent by or on behalf of the obligee, or by the support enforcement agency, to the person defined as the obligor’s employer under [the income-withholding law of this State] without first filing a [petition] or comparable pleading or registering the order with a tribunal of this State.

SECTION 502. EMPLOYER’S COMPLIANCE WITH INCOME-WITHHOLDING ORDER OF ANOTHER STATE.

(a) Upon receipt of an income-withholding order, the obligor’s employer shall immediately provide a copy of the order to the obligor.

(b) The employer shall treat an income-withholding order issued in by a tribunal of another State which appears regular on its face as if it had been issued by a tribunal of this State.

(c) Except as otherwise provided in subsection (d) and Section 503, the employer shall withhold and distribute the funds as directed in the withholding order by complying with terms of the order which specify:

(1) the duration and amount of periodic payments of current child-support, stated as a sum certain;

(2) the person designated to receive payments and the address to which the payments are to be forwarded;

(3) medical support, whether in the form of periodic cash payment, stated as a sum certain, or ordering the obligor to provide health insurance coverage for the child under a policy available through the obligor’s employment;

(4) the amount of periodic payments of fees and costs for a support enforcement agency, the issuing tribunal, and the obligee’s attorney, stated as sums certain; and

(5) the amount of periodic payments of arrearages and interest on arrearages, stated as sums certain.

(d) An employer shall comply with the law of the State of the obligor’s principal place of employment for withholding from income with respect to:

(1) the employer’s fee for processing an income-withholding order;

(2) the maximum amount permitted to be withheld from the obligor’s income; and

(3) the times within which the employer must implement the withholding order and forward the child-support payment.

SECTION 503. EMPLOYER’S COMPLIANCE WITH TWO OR MORE INCOME-WITHHOLDING ORDERS. If an obligor’s employer receives two or more income-withholding orders by State tribunals with respect to the earnings of the same obligor, the employer satisfies the terms of the orders if the employer complies with the law of the State of the obligor’s principal place of employment to establish the priorities for withholding and allocating income withheld for two or more child-support obligees.

SECTION 504. IMMUNITY FROM CIVIL LIABILITY. An employer who complies with an income-withholding order issued in by a tribunal of another State in accordance with this article is not subject to civil liability to an individual or agency with regard to the employer’s withholding of child-support from the obligor’s income.

SECTION 505. PENALTIES FOR NONCOMPLIANCE. An employer who willfully fails to comply with an income-withholding order issued by a tribunal of another State and received for enforcement is subject to the same penalties that may be imposed for noncompliance with an order issued by a tribunal of this State.

SECTION 506. CONTEST BY OBLIGOR.

(a) An obligor may contest the validity or enforcement of an income-withholding order issued in by a tribunal of another State and received directly by an employer in this State by registering the order in a tribunal of this State and filing a contest to that order as provided in Article 6, or otherwise contesting the order in the same manner as if the order had been issued by a tribunal of this State.

(b) The obligor shall give notice of the contest to:

(1) a support enforcement agency providing services to the obligee;

(2) each employer that has directly received an income-withholding order relating to the obligor; and

(3) the person designated to receive payments in the income-withholding order or, if no person is designated, to the obligee.

SECTION 507. ADMINISTRATIVE ENFORCEMENT OF ORDERS.

(a) A party or support enforcement agency seeking to enforce a support order or an income-withholding order, or both, issued by a tribunal of another State or foreign country may send the documents required for registering the order to a support enforcement agency of this State.

(b) Upon receipt of the documents, the support enforcement agency, without initially seeking to register the order, shall consider and, if appropriate, use any administrative procedure authorized by the law of this State to enforce a support order or an income-withholding order, or both. If the obligor does not contest administrative enforcement, the order need not be registered. If the obligor contests the validity or administrative enforcement of the order, the support enforcement agency shall register the order pursuant to this [Act].

REPORTER’S NOTE

If a support enforcement agency receives a request for services from an individual accompanied by a copy of a foreign support order, the agency should be able to commence administrative enforcement if available under applicable state law. In a case of a foreign order, however, there will need to be a standard administrative process for determining currency equivalence.

ARTICLE 6

REGISTRATION, ENFORCEMENT, AND MODIFICATION OF SUPPORT ORDER

PART 1 REGISTRATION AND ENFORCEMENT OF SUPPORT ORDER.

REPORTER’S NOTE

With selective editing, the registration and enforcement provisions in Article 6, Part 1, should conform to the provisions of the proposed Convention. Directives in Sections 601, 609, and Article 7 may suffice to restrict international orders to the proper channels.

SECTION 601. REGISTRATION OF ORDER FOR ENFORCEMENT.

(a) A support order or income-withholding order issued by a tribunal of another State may be registered in this State for enforcement.

(b) Except as otherwise provided in [Article 7], a party or support enforcement agency seeking to enforce or modify a child-support order issued by a foreign tribunal shall register that order in this State as provided in this [Article].

SECTION 602. PROCEDURE TO REGISTER ORDER FOR ENFORCEMENT.

(a) Except as otherwise provided in Section 705, A a support order or income-withholding order issued by a tribunal of another State or foreign country may be registered in this State by sending the following records and information to the [appropriate tribunal] in this State:

(1) a letter of transmittal to the tribunal requesting registration and enforcement;

(2) two copies, including one certified copy, of the order to be registered, including any modification of the order;

(3) a sworn statement by the person requesting registration or a certified statement by the custodian of the records showing the amount of any arrearage;

(4) the name of the obligor and, if known:

(A) the obligor’s address and social security number;

(B) the name and address of the obligor’s employer and any other source of income of the obligor; and

(5) except as otherwise provided in Section 312, the name and address of the obligee and, if applicable, the person to whom support payments are to be remitted.

(b) On receipt of a request for registration, the registering tribunal shall cause the order to be filed as ~~a foreign judgment~~ an order of a tribunal of another State or foreign country, together with one copy of the documents and information, regardless of their form.

(c) A [petition] or comparable pleading seeking a remedy that must be affirmatively sought under other law of this State may be filed at the same time as the request for registration or later. The pleading must specify the grounds for the remedy sought.

(d) If two or more orders are in effect, the person requesting registration shall:

(1) furnish to the tribunal a copy of every support order asserted to be in effect in addition to the documents specified in this section;

(2) specify the order alleged to be the controlling order, if any; and

(3) specify the amount of consolidated arrears, if any.

(e) A request for a determination of which is the controlling order may be filed separately or with a request for registration and enforcement or for registration and modification. The person requesting registration shall give notice of the request to each party whose rights may be affected by the determination.

REPORTER’S NOTE

Apparently the list of documents required in Subsection (a) conflicts with Convention articles 11(3) and 25. Given that millions of domestic cases have been processed under the procedure specified in this section, and approximately less than one-tenth of one percent (0.001%) have involved a foreign order (a perfect illustration of the tail wagging the dog). My recommendation is to add a special rule for documentation of foreign orders in Article 7, infra.

SECTION 603. EFFECT OF REGISTRATION FOR ENFORCEMENT.

(a) A support order or income-withholding order issued in by a tribunal of another State or foreign country is registered when the order is filed in the registering tribunal of this State.

(b) A registered order issued in by a tribunal of another State or foreign country is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this State.

(c) Except as otherwise provided in this ~~article~~ [Act], a tribunal of this State shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction.

SECTION 604. CHOICE OF LAW.

(a) Except as otherwise provided in subsection (d), the law of the issuing State or foreign country governs:

(1) the nature, extent, amount, and duration of current payments under a registered support order;

(2) the computation and payment of arrearages and accrual of interest on the arrearages under the support order; and

(3) the existence and satisfaction of other obligations under the support order.

(b) In a proceeding for arrears under a registered support order, the statute of limitation of this State, or of the issuing State or foreign country, whichever is longer, applies.

(c) A responding tribunal of this State shall apply the procedures and remedies of this State to enforce current support and collect arrears and interest due on a support order issued by a tribunal of another State or foreign country registered in this State.

(d) After a tribunal of this or another State or foreign country determines which is the controlling order and issues an order consolidating arrears, if any, a tribunal of this State shall prospectively apply the law of the State or foreign country issuing the controlling order, including its law on interest on arrears, on current and future support, and on consolidated arrears.

Part 2 CONTEST OF VALIDITY OR ENFORCEMENT

SECTION 605. NOTICE OF REGISTRATION OF ORDER.

(a) When a support order or income-withholding order issued in by a tribunal of another State or foreign country is registered, the registering tribunal of this State shall notify the nonregistering party. The notice must be accompanied by a copy of the registered order and the documents and relevant information accompanying the order.

(b) Except as otherwise provided in Section 706, A a notice must inform the nonregistering party:

(1) that a registered order is enforceable as of the date of registration in the same manner as an order issued by a tribunal of this State;

(2) that a hearing to contest the validity or enforcement of the registered order must be requested within [20] days after notice;

(3) that failure to contest the validity or enforcement of the registered order in a timely manner will result in confirmation of the order and enforcement of the order and the alleged arrearages; and

(4) of the amount of any alleged arrearages.

(1) identify the two or more orders and the order alleged by the registering person to be the controlling order and the consolidated arrears, if any;

(2) notify the nonregistering party of the right to a determination of which is the controlling order;

(3) state that the procedures provided in subsection (b) apply to the determination of which is the controlling order; and

(4) state that failure to contest the validity or enforcement of the order alleged to be the controlling order in a timely manner may result in confirmation that the order is the controlling order.

(d) Upon registration of an income-withholding order for enforcement, the registering tribunal shall notify the obligor’s employer pursuant to [the income-withholding law of this State].

REPORTER’S NOTE

See Convention art. 23

The requirement that a notice to contest must be filed within [20] days has been retained (the brackets indicate the length of time is suggested, not fixed). On the other hand, the Convention requires a fixed 30 days, and a fixed 60 days if the respondent resides in a foreign country, see Convention art. 23. Incorporating the time frames established in the Convention was rejected by the drafting Committee in Tucson. The longer time frames will be limited in Article 7 to only those cases involving the Convention.

SECTION 606. PROCEDURE TO CONTEST VALIDITY OR ENFORCEMENT OF REGISTERED ORDER.

(a) Except as otherwise provided in Section 706, A a nonregistering party seeking to contest the validity or enforcement of a registered order in this State shall request a hearing within [20] days after notice of the registration. The nonregistering party may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages pursuant to Section 607.

(b) If the nonregistering party fails to contest the validity or enforcement of the registered order in a timely manner, the order is confirmed by operation of law.

(c) If a nonregistering party requests a hearing to contest the validity or enforcement of the registered order, the registering tribunal shall schedule the matter for hearing and give notice to the parties of the date, time, and place of the hearing.

REPORTER’S NOTE

See Convention arts.20 & 22

See preceding comment.

SECTION 607. CONTEST OF REGISTRATION OR ENFORCEMENT. A nonregistering party contesting the validity or enforcement of a registered order or seeking to vacate the registration has the burden of proving one or more of the following defenses:

(1) the issuing tribunal lacked personal jurisdiction over the contesting party;

(2) the order was obtained by fraud;

(3) the order has been vacated, suspended, or modified by a later order;

(4) the issuing tribunal has stayed the order pending appeal;

(5) there is a defense under the law of this State to the remedy sought;

(6) full or partial payment has been made;

(7) the statute of limitation under Section 604 precludes enforcement of some or all of the alleged arrearages; or

(8) the alleged controlling order is not the controlling order.

REPORTER’S NOTE

The amendments consistent with Convention arts. 19, & 20

SECTION 608. CONFIRMED ORDER. Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

PART 3 REGISTRATION AND MODIFICATION OF CHILD-SUPPORT
ORDER OF ANOTHER STATE

REPORTER’S NOTE

In drafting UIFSA 1992 critical choices were made regarding modification of an existing child-support order when all parties and the child had left the issuing State. First, the original order was to remain in force as the controlling order until modified. Second, the issue was what to do when the parties resided in different States. The deciding factor centered on the undesirable effect of ambush jurisdiction. The drafting committee objected to the possibility that the parties would vie to strike first to obtain a home town advantage. Arguably this could discourage continued contact with the children by the obligor for fear of a lawsuit in a distant forum. Thus, modification in a forum with long-arm personal jurisdiction over both parties was to be avoided. Indeed, repeated modification suits were to be avoided. Ultimately, an alternative was produced, which has come to be known as “the movant must play an away game,” as exemplified in Section 611.

The requirements of Section 611, and the prohibition against assertion of long-arm jurisdiction in the international context makes much less sense. Only because the United States is wedded to personal jurisdiction over the individual parties, rather than the child-based jurisdiction found virtually everywhere else, does this issue arise. Thus, a foreign country typically regards a support order to be one of the country. In a few recognized instances orders are made by a political subdivision, e.g. Canadian provinces, again based on the obligee’s residence. Consideration was given to labeling a support order of a State as an order of the United States. Conforming modification to the general principles of state-control of the subject matter through UIFSA, with an exception for appropriate assertion of long-arm jurisdiction, seems the more conservative approach. Of course, the movant may also choose to seek modification in the other party’s place of residence.

Some of the General Provisions in Convention ch. VIII do not direct action to be taken by a tribunal or agency of a U.S. State, or direct action that is already covered by the law of the State in UIFSA or otherwise. As a preliminary judgment, those that seem relevant to UIFSA have been included in UIFSA arts. 1-6. Obviously, further study will be necessary to confirm these preliminary conclusions. Please note any disagreement with the conclusions.

SECTION 609. PROCEDURE TO REGISTER CHILD-SUPPORT ORDER OF ANOTHER STATE FOR MODIFICATION. A party or support enforcement agency seeking to modify, or to modify and enforce, a child-support order issued in by a tribunal of another State shall register that order in this State in the same manner provided in ~~Part 1~~ Sections 601 through 608 if the order has not been registered. A [petition] for modification may be filed at the same time as a request for registration, or later. The pleading must specify the grounds for modification.

SECTION 610. EFFECT OF REGISTRATION OF CHILD-SUPPORT ORDER OF ANOTHER STATE FOR MODIFICATION. A tribunal of this State may enforce a child-support order issued by a tribunal of another State registered for purposes of modification, in the same manner as if the order had been issued by a tribunal of this State, but the registered order may be modified only if the requirements of Section 611 - 614 or 615 have been met.

SECTION 611. MODIFICATION OF CHILD-SUPPORT ORDER OF ANOTHER STATE.

(a) If Section 613 does not apply, except upon [petition] a tribunal of this State may modify a child-support order issued in by a tribunal of another State which is registered in this State if, after notice and hearing, the tribunal finds that:

(1) the following requirements are met:

(A) neither the child, nor the obligee who is an individual, nor the obligor resides in the issuing State;

(B) a [petitioner] who is a nonresident of this State seeks modification; and

(2) this State is the State of residence of the child, or a party who is an individual is subject to the personal jurisdiction of the tribunal of this State, and all of the parties who are individuals have filed consents in a record in the issuing tribunal for a tribunal of this State to modify the support order and assume continuing, exclusive jurisdiction.

(b) Modification of a registered child-support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this State and the order may be enforced and satisfied in the same manner.

(c) A tribunal of this State may not modify any aspect of a child-support order that may not be modified under the law of the issuing State, including the duration of the obligation of support. If two or more tribunals have issued child-support orders for the same obligor and same child, the order that controls and must be so recognized under Section 207 establishes the aspects of the support order which are nonmodifiable.

(d) In a proceeding to modify a child-support order, the law of the State that is determined to have issued the initial controlling order governs the duration of the obligation of support. The obligor’s fulfillment of the duty of support established by that order precludes imposition of a further obligation of support by a tribunal of this State.

(e) On the issuance of an order by a tribunal of this State modifying a child-support order issued in by a tribunal of another State, the tribunal of this State becomes the tribunal having continuing, exclusive jurisdiction.

SECTION 612. RECOGNITION OF ORDER MODIFIED IN ANOTHER STATE. If a child-support order issued by a tribunal of this State is modified by a tribunal of another State which assumed jurisdiction pursuant to the Uniform Interstate Family Support Act, a tribunal of this State:

(1) may enforce its order that was modified only as to arrears and interest accruing before the modification;

(2) may provide appropriate relief for violations of its order which occurred before the effective date of the modification; and

(3) shall recognize the modifying order of the other State, upon registration, for the purpose of enforcement.

SECTION 613. JURISDICTION TO MODIFY CHILD-SUPPORT ORDER OF ANOTHER STATE WHEN INDIVIDUAL PARTIES RESIDE IN THIS STATE.

(a) If all of the parties who are individuals reside in this State and the child does not reside in the issuing State, a tribunal of this State has jurisdiction to enforce and to modify the issuing State’s child-support order in a proceeding to register that order.

(b) A tribunal of this State exercising jurisdiction under this section shall apply the provisions of Articles 1 and 2, this article, and the procedural and substantive law of this State to the proceeding for enforcement or modification. Articles 3, 4, 5, 7, and 8 do not apply.

SECTION 614. NOTICE TO ISSUING TRIBUNAL OF MODIFICATION. Within [30] days after issuance of a modified child-support order, the party obtaining the modification shall file a certified copy of the order with the issuing tribunal that had continuing, exclusive jurisdiction over the earlier order, and in each tribunal in which the party knows the earlier order has been registered. A party who obtains the order and fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the issue of failure to file arises. The failure to file does not affect the validity or enforceability of the modified order of the new tribunal having continuing, exclusive jurisdiction.

SECTION 615. JURISDICTION TO MODIFY CHILD-SUPPORT ORDER OF FOREIGN COUNTRY OR POLITICAL SUBDIVISION.

(a) If a foreign country [or political subdivision that is s State] will not or may not modify its order pursuant to its laws, a tribunal of this State may assume jurisdiction to modify the child-support order and bind all individuals subject to the personal jurisdiction of the tribunal whether or not the consent to modification of a child-support order otherwise required of the individual pursuant to Section 611 has been given or whether the individual seeking modification is a resident of this State or of the foreign country or political subdivision. Except as otherwise provided in Section 712, a tribunal of this State may not modify a foreign child-support order based on personal jurisdiction over the individual parties unless the foreign tribunal lacks or refuses to exercise jurisdiction to modify its order pursuant to its laws.

(b) An order issued by a tribunal of this State modifying a foreign child-support order pursuant to this section is the controlling order.

REPORTER’S NOTE

This revision of UIFSA § 615 is consistent with Convention art. 15 2. c), which limits proceedings initiated by the obligor when the obligee remains in the issuing state. The contemplation here is that the obligee will seek modification, but will be unable to obtain it because the obligor will not appear to defend or the obligee must appear in a distant forum.

SECTION 616. PROCEDURE TO REGISTER CHILD-SUPPORT ORDER OF A FOREIGN COUNTRY FOR MODIFICATION. A party or support enforcement agency seeking to modify, or to modify and enforce, a child-support order issued by a tribunal of a foreign country shall register that order in this State in the same manner provided in Sections 601 through 608 if the order has not been registered. A [petition] for modification may be filed at the same time as a request for registration, or later. The pleading must specify the grounds for modification.

SECTION 617. MODIFICATION OF STATE CHILD-SUPPORT ORDER INVOLVING INDIVIDUAL RESIDING IN FOREIGN COUNTRY.

(a) Without regard to the restrictions on modification of a child-support order stated in Sections 201(b) and 611, a tribunal of this State may modify a child-support order issued by a tribunal of another State if:

(1) the child-support order involves an obligor, obligee, or child residing in a foreign country;

(2) the issuing State lacks continuing exclusive jurisdiction to modify its order under Section 205; and

(3) this State is the home state of the child or the State in which a party resides.

(b) Without regard to the restrictions on modification of a child-support order stated in Section 201(b) and 611, a tribunal of this State retains jurisdiction to modify an order issued by a tribunal of this State if the requesting party resides in another State and the nonrequesting party resides in a foreign country.

ARTICLE 7

DETERMINATION OF PARENTAGE

SUPPORT ORDER SUBJECT TO CONVENTION

REPORTER’S NOTE

As originally presented to the Uniform Law Conference in UIFSA 1992, Article 7 contained a wide variety of substantive and procedural sections regarding parentage actions. All those provisions except the single section above, moved to Article 4, were deleted in floor debate. The persuasive argument was that the Uniform Parentage Act (1973) provided the authoritative word on the Conference’s position on the subject. In short, the attempt to amend portions of UPA (1973) failed. Of course, a decade later NCCUSL promulgated a completely revised act, the Uniform Parentage Act (2002). I have moved UIFSA § 701 to Article 4. A reasonable alternative would be to delete the section entirely. Either action will free Article 7 for statutes to deal with international support orders.

In drafting a new iteration of UIFSA, a crucial fact must be kept in mind. If and when two-thirds of the U.S. Senate gives advice and its consent to the new Convention, and the President’s signs, the Convention will be finally ratified and becomes the “law of the land.” However, because the treaty is not self-executing, it will require either additional federal or State law to become fully effective. Another crucial fact is that establishment, enforcement, and modification of child-support and spousal support orders historically has been a matter for state tribunals. Although the existence of substantial federal subsidies has led to a cooperative effort between state and federal governments, the mode for establishment, enforcement, and modification remains with the judicial and administrative entities of the States.

In any event, the language of the Convention is what it is, and is not subject to domestic amendment. The choice for the U.S. Senate is to accept all or none of the provisions of the Convention, other than those few that are subject to reservation by individual Contracting States. However, there is ample precedent for the Senate to attach significant conditions to be met before its consent is operative. For bench and bar in the States to function efficiently, a translation of HccH treaty-English into UIFSA language is not only permissible, but, in my opinion, is vital to facilitate implementation of the Convention at ground level. This conclusion was sanctioned in Chicago last year by William Duncan, Deputy Secretary General, HccH Secretariat.

Gathering the provisions of the Convention applicable to a proceeding involving a foreign country in Article 7, if not clearly already covered in UIFSA, will eliminate the necessity to pick and choose when to insert or delete existing text throughout the Act. Although chapter 2 is controlling insofar as establishing personal jurisdiction over a party when required in a case involving a foreign country, the provisions to accomplish this do not need to be amended in this chapter.

UIFSA should not remain passive regarding the effect of a support order issued by a foreign tribunal entitled to enforcement by a “tribunal of this State.” For example, although the terms “modify” and “modification” are much employed in the text of the draft Convention (17 times in all), many questions about that process go unanswered in the Convention. UIFSA may fill these gaps. Moreover, many of the provisions in Convention chs. VI to IX pose questions about which of those to include in UIFSA. For example, Articles 26 and 27 have been included in rewritten form even though UIFSA already contains the principles expressed. This illustrates the persuasive influence exerted by UIFSA 2001 to influence the Hague negotiations. This effect is even clearer in Convention Articles 32 through 36.

This draft adopts the position that a very limited number of amendments to UIFSA are required for Convention Chapters II and III (some duplication is already present). Similarly, from Article 44 through Article 65 no UIFSA amendments are proposed. The rationale is that agreements between sovereign nations and duties of central authorities are beyond the jurisdiction of state legislatures to regulate.

~~SECTION 701. PROCEEDING TO DETERMINE PARENTAGE.~~ A court of this State authorized to determine parentage of a child may serve as a responding tribunal in a proceeding to determine parentage brought under this [Act] or a law or procedure substantially similar to this [Act].

SECTION 701. [ARTICLE] APPLIES ONLY TO FOREIGN SUPPORT ORDER SUBJECT TO CONVENTION.

(a) This [Article] applies only to support orders and proceedings subject to the Convention.

(b) If a provision of this [Article] is inconsistent with a provision in another [Article] of this [Act] with regard to a support order subject to the Convention, this [Article] controls.

REPORTER’S NOTE

See Convention arts. 1 and 2.

SECTION 702. DEFINITIONS. In this Article:

(1) “Application” means a request under the Convention by an obligee or obligor made through a central authority for assistance from another central authority.

(2) “Central authority” means the entity designated by a country that has ratified or acceded to the United States with regard to the Convention.

(3) “Federal central authority” means the Office of Child Support Enforcement, United States Department of Health and Human Services.

(4) “Foreign support agreement” means an agreement for support in a record that is enforceable in the country of origin and which:

(A) has been formally drawn up or registered as an authentic instrument by a foreign tribunal; or

(B) has been authenticated by, or concluded, registered or filed with a foreign tribunal, and may be the subject of review and modification by a foreign tribunal; and

SECTION 703. RELATIONSHIP OF STATE AGENCY TO FEDERAL CENTRAL AUTHORITY. The [governmental entity] of this State is recognized as the agency designated by the [federal central authority] to provide the services required by the Convention.

REPORTER’S NOTE

See Convention arts. 4-17

SECTION 704. INITIATION OF SUPPORT PROCEEDING SUBJECT TO CONVENTION.

(a) Pursuant to the Convention, the [governmental entity] of this State shall assist:

(1) an individual to file an application under the Convention in a foreign country; and

(2) the central authority of a foreign country to file a [petition] in a tribunal of this State.

(b) Pursuant to the Convention, an obligee, obligor, or child residing in a foreign country may file a [petition] directly with a tribunal of this State. An individual filing directly will not receive assistance of the [governmental entity].

SECTION 705. REGISTRATION OF SUPPORT ORDER SUBJECT TO CONVENTION.

(a) Except as otherwise provided in this [Article], an individual party or [governmental entity] seeking recognition of a foreign support order subject to the Convention shall register the order in this State as provided in Sections 601-604.

(b) Notwithstanding Section 311, pursuant to the Convention a request for registration of a foreign support order subject to the Convention shall be accompanied by:

(1) a complete text of the support order;

(2) a document stating that the support order was issued by an appropriate tribunal and is enforceable in the issuing country;

(3) if the respondent did not appear and was not represented in the proceedings in the issuing country, a document or documents attesting, as appropriate, either that the respondent had proper notice of the proceedings and an opportunity to be heard, or that the respondent had proper notice of the support order and the opportunity to challenge or appeal it on fact and law;

(4) where necessary, a document showing the amount of any arrears, and the date such amount was calculated;

(5) where necessary, the automatic adjustment by indexation, if any, and the information necessary to make the appropriate calculations;

(6) where necessary, documentation showing the extent to which the applicant received free legal assistance in the issuing country.

(d) A tribunal may refuse to register a foreign support order only if the order is manifestly incompatible with public policy.

(e) The tribunal shall promptly notify parties of the registration or the refusal of registration.

REPORTER’S NOTE

See Convention art. 25, 32

SECTION 706. CONTEST OF VALIDITY OF FOREIGN SUPPORT ORDER SUBJECT TO CONVENTION.

(a) Except as otherwise provided in this Article, a contest of the validity of a registered order is subject to Sections 605-608.

(b) A party contesting the recognition and enforcement of a foreign support order subject to the Convention must [challenge or appeal] within 30 days of notification of the registration unless the contesting party is not resident in the United States, in which case the [challenge or appeal] must be within 60 days of notification.

(1) the lack of a basis for enforcement under Section 707;

(2) the grounds for refusing enforcement under Section 708;

(3) the authenticity or integrity of any document transmitted in accordance with Section 706; or

(4) the payment in part or whole of the alleged arrears.

(d) In a [challenge or appeal] to the validity of a registered order, a tribunal of this State:

(1) shall be bound by the findings of fact on which the foreign tribunal based its jurisdiction; and

(2) shall not review the merits of the (foreign) support order.

(e) The parties shall be promptly notified of the result of the [challenge or appeal].

(f) A further appeal, if any, shall not have the effect of staying the enforcement of the support order unless there are exceptional circumstances.

REPORTER’S NOTE

See Convention arts. 23, 27, 28

SECTION 707. RECOGNITION AND ENFORCEMENT OF FOREIGN SUPPORT ORDER SUBJECT TO CONVENTION.

(a) A tribunal of this State shall recognize and enforce a foreign support order subject to the Convention if:

(1) the issuing tribunal had jurisdiction consistent with Section 201 of this [Act]; and

(2) the order is effective and enforceable in the issuing country.

(b) If a tribunal of this State cannot recognize a foreign support order because under similar facts a tribunal of this State would not have had personal jurisdiction under Section 201, a party may seek establishment of a support order by a tribunal in this State.

(c) If a tribunal of this State refuses to enforce the whole of a foreign support order, it shall enforce any severable part of the order that may be enforced. A [petition] may request registration and partial enforcement of a foreign support order.

(d) If the order referred to in subsection (c) is a foreign child-support order, the tribunal in this State shall accept the order as establishing the eligibility of the child to seek an order for support.

(e) Except as otherwise provided in this [Article] a tribunal of this State which has recognized a registered support order subject to the Convention shall apply the provisions of [Articles 1-6] to enforce the order.

REPORTER’S NOTE

See Convention art. 20, 21, 27, 28

Because in the rest of the world the residence of the obligee and child is determinative of jurisdiction to establish and modify a support order, the issue of personal jurisdiction over the obligor is basically moot. This distinction forms the basis of Convention art. 20, Bases for Recognition and Enforcement. That the United States will take a reservation to Article 20 regarding “creditor-based” jurisdiction was understood by all parties to the negotiations. This provision takes that understanding an identical step forward with regard to a modification of the original support order.

SECTION 708. REFUSAL OF RECOGNITION AND ENFORCEMENT OF FOREIGN SUPPORT ORDER SUBJECT TO CONVENTION.

(a) A tribunal of this State may refuse recognition and enforcement of a foreign child-support order subject to the Convention if:

(1) recognition and enforcement of the order is manifestly incompatible with public policy;

(2) the order was obtained by fraud in connection with a matter of procedure;

(3) a proceeding between the same parties and having the same purpose is pending before a tribunal of this State and that proceeding was the first to be instituted;

(4) the order is incompatible with a more recent support order issued between the same parties and having the same purpose, provided that the more recent support order is entitled to recognition and enforcement in this State;

(5) in a case where the respondent neither appeared nor was represented in the proceeding in the issuing foreign country:

(A) when the law of the issuing foreign country provides for notice of proceedings, the respondent did not have proper notice of the proceedings and an opportunity to be heard; or

(B) when the law of the issuing foreign country does not provide for notice of the proceedings, the respondent did not have proper notice of the order and the opportunity to challenge it on fact and law; or

(6) the order was made by a tribunal other than the tribunal that issued the controlling order in accordance with Section 711.

REPORTER’S NOTE

See Convention arts. 20, 22

SECTION 709. FOREIGN SUPPORT AGREEMENT SUBJECT TO CONVENTION.

(a) A tribunal of this State shall recognize and enforce a valid foreign support agreement registered in this State.

(b) An application for recognition and enforcement of a foreign support agreement shall be accompanied by:

(1) a complete text of the foreign support agreement; and

(2) a document stating that the foreign support agreement is enforceable as a decision in the issuing country.

(1) recognition and enforcement of the agreement is manifestly incompatible with the public policy of this State;

(2) the agreement was obtained by fraud or falsification;

(3) the agreement is incompatible with a support order rendered between the same parties and having the same purpose, either in this State, another State, or a foreign country, provided that the latter support order is entitled to enforcement in this State;

(4) there is another other reason that affects the integrity of the agreement .

(d) A proceeding for recognition and enforcement of a foreign support agreement shall be suspended if a challenge to the agreement is pending before a tribunal in another State or foreign country.

REPORTER’S NOTE

See Convention arts. 3 & 30

SECTION 710. CONFIRMATION OF PROVISIONAL FOREIGN SUPPORT ORDER SUBJECT TO CONVENTION.

(a) A tribunal of this State having jurisdiction over the obligor may issue a support order to confirm a provisional foreign support order, provided the respondent had proper notice of the proceedings in this State and an opportunity to oppose the confirmation of the provisional order.

(b) The confirming order by the tribunal of this Sate is enforceable and modifiable in this State.

(c) If a registered order is produced by the combined effect of a provisional order issued by a tribunal in one foreign country and a confirming order issued by a tribunal in another State or foreign country, a tribunal of this State shall enforce the order if it is enforceable in the confirming State or country.

REPORTER’S NOTE

See Convention arts. 20, 22, and 31

Although this procedure may seem bewildering to those encountering it for the first time, it has long been a part of the relationship between U.S. authorities and Commonwealth countries, especially the Canadian provinces. In fact, UIFSA § 304(b) was designed to facilitate this process, but the Convention explains the procedure more clearly.

SECTION 711. DETERMINATION OF CONTROLLING CHILD-SUPPORT ORDER SUBJECT TO CONVENTION. If a proceeding is brought under this [Act], and two or more child-support orders have been issued by foreign tribunals with regard to the same obligor and same child, a tribunal of this State shall apply the following rules and by order shall determine which order controls:

(1) if only one of the tribunals had personal jurisdiction over the individual parties under this [Act], the order of that tribunal controls and must be so recognized.

(2) if more than one of the tribunals had personal jurisdiction over the obligor and obligee under this [Act], the order most recently issued controls.

(3) if none of the tribunals had personal jurisdiction over the obligor and obligee, under this [Act], the tribunal of this State with such jurisdiction shall issue a child-support order, which controls.

REPORTER’S NOTE

Not derived from the Convention.

SECTION 712. MODIFICATION OF FOREIGN CHILD-SUPPORT ORDER SUBJECT TO CONVENTION.

(a) Subject to the limitation of subsection (b), a tribunal of this State may modify, or modify and enforce the foreign support order which has been registered in this State under Section 705.

(b) A tribunal of this State may not modify the foreign support order if the obligee remains a resident of the foreign country where the support order was issued. This subsection does not apply if:

(1) the obligee submits to the jurisdiction of a tribunal of this State, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity;

(2) the foreign tribunal lacked or refused to exercise its jurisdiction to modify its support order or issue a new support order, as provided in Section 615; or

(3) the foreign support order cannot be recognized in this State.

REPORTER’S NOTE

See Convention art. 18.

The term “modify” and its variants is used 17 times in the text of the Convention, but many questions remain unanswered. UIFSA may legitimately fill these gaps.

SECTION 713. ENFORCEMENT OF MODIFIED FOREIGN CHILD-SUPPORT ORDER SUBJECT TO CONVENTION.

(a) A tribunal of this State shall apply the provisions of this [Act] to recognize and enforce a modified foreign child-support order.

(b) If the tribunal of this State cannot register and enforce a modified foreign child-support order because under similar facts a tribunal of this State would not have had jurisdiction under Section 201, the tribunal shall take all appropriate measures to establish a support order if it may assert personal jurisdiction over the individual parties.

Reporter’s Note

Not derived from the Convention.

ARTICLE 8

INTERSTATE RENDITION

SECTION 801. GROUNDS FOR RENDITION.

(a) For purposes of this article, “governor” includes an individual performing the functions of governor or the executive authority of a State covered by this [Act].

(b) The governor of this State may:

(1) demand that the governor of another State surrender an individual found in the other State who is charged criminally in this State with having failed to provide for the support of an obligee; or

(2) on the demand of the governor of another State, surrender an individual found in this State who is charged criminally in the other State with having failed to provide for the support of an obligee.

(c) A provision for extradition of individuals not inconsistent with this [Act] applies to the demand even if the individual whose surrender is demanded was not in the demanding State when the crime was allegedly committed and has not fled therefrom.

SECTION 802. CONDITIONS OF RENDITION.

(a) Before making a demand that the governor of another State surrender an individual charged criminally in this State with having failed to provide for the support of an obligee, the governor of this State may require a prosecutor of this State to demonstrate that at least [60] days previously the obligee had initiated proceedings for support pursuant to this [Act] or that the proceeding would be of no avail.

(b) If, under this [Act] or a law substantially similar to this [Act], the governor of another State makes a demand that the governor of this State surrender an individual charged criminally in that State with having failed to provide for the support of a child or other individual to whom a duty of support is owed, the governor may require a prosecutor to investigate the demand and report whether a proceeding for support has been initiated or would be effective. If it appears that a proceeding would be effective but has not been initiated, the governor may delay honoring the demand for a reasonable time to permit the initiation of a proceeding.

(c) If a proceeding for support has been initiated and the individual whose rendition is demanded prevails, the governor may decline to honor the demand. If the [petitioner] prevails and the individual whose rendition is demanded is subject to a support order, the governor may decline to honor the demand if the individual is complying with the support order.

ARTICLE 9

MISCELLANEOUS PROVISIONS

SECTION 901. UNIFORMITY OF APPLICATION AND CONSTRUCTION. In applying and construing this Uniform Act consideration must be given to the need to promote uniformity of the law with respect to its subject matter among States that enact it.

SECTION 902. SEVERABILITY CLAUSE. If any provision of this [Act] or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this [Act] which can be given effect without the invalid provision or application, and to this end the provisions of this [Act] are severable.

SECTION 903. EFFECTIVE DATE. This [Act] takes effect ........................